11th Circuit: Residence used for recording sexual activity to broadcast on the Internet properly regulated as business
Residence used for recording sexual activity to broadcast on the Internet was not properly regulated as an “adult businesses” but was properly regulated as a business.
Before Pryor and Fay, Circuit Judges, and Quist,* District Judge. Writing a unanimous panel opinion, Judge Fay summarized the ruling in the opening paragraph:
This appeal arises out of a zoning dispute between an online adult entertainment business and the City of Miami regarding the use of a privately owned residence. Angel Barrios and Flava Works, Inc. seek to quash the Miami Code Enforcement Board’s final administrative ruling that they were engaged in “adult entertainment” in an inappropriate zone and “illegally operating a business in a residential zone.” Their lawsuit, brought in federal court, included a state law petition for writ of certiorari as well as constitutional claims. On cross-motions for summary judgment, the district court granted the writ of certiorari, quashed the decision of Code Enforcement Board, and held that Flava Works was neither operating an adult entertainment establishment nor a business at the residence. We reverse and render a partial judgment in favor of the City of Miami on the state law claim that Flava Works was operating a business at the residence. We remand for further proceedings on the constitutional claims.
In exchange for $1,200 per month and free room and board, Flava Works, Inc. entered into agreements for persons residing at one of its residences to engage in sexual relations which are broadcasted to Internet subscribers. Relying on Voyeur Dorm, L.C. v. City of Tampa, Fla., 2003 WL 23208270 (11th Cir. Feb 19, 2003), the “district court held that ‘since the Miami zoning ordinance is designed to restrict establishments that offer adult entertainment services to the public at their physical location, that ordinance cannot be ‘applied to a particular location that does not, at that location, offer adult entertainment’ or services to the public.’” The city did not challenge this conclusion on appeal, but argued that Flava Works was operating without an appropriate businesses license. The 11th Circuit agreed with the city on this point.